Strutt v Haram [1963] PGSC 35 (13 February 1963)

IN THE SUPREME COURT
OF THE TERRITORY OF
PAPUA AND NEW GUINEA

Coram: Mann C.J.

BRIAN MALCOLM STRUIT
Appellant

- and –

PAUL HARAM
Respondent

REASONS FOR JUDGMENT

Port Moresby

13^th February
1963.

This is an appeal from what purports to be a decision and order of the Resident Magistrate at Port Moresby whereby he refused to deal with a matter which came before him upon a charge for an indictable offence, and directed that the defendant be released. I say that the transaction purports to be a decision and order because, as a result of what took place, the defendant was released from custody and the charge before the Court did not proceed to a hearing. So far as the record of the Court shows the only conclusion expressed was that the Magistrate refused to deal with the matter on the grounds of triviality.

When the matter came on before me on appeal, it appeared that the appellant's proceedings were in some respects out of order. In the first place, the Notice of Appeal was given and served out of time and, secondly, the recognizance specified in section 176 of the Justices Ordinance was not given by the appellant. The time for giving such a recognizance has passed.

There is clear authority to the effect that the conditions laid down by statute upon which the right of appeal depends must be strictly observed. I was asked to exercise the power conferred by section 185 of the Ordinance to dispense with compliance of conditions and grant the appropriate extensions of time. The question arose whether the appellant had done whatever was reasonably practicable to comply with the provisions of the Ordinance, and it appeared to me unlikely that he could bring himself within section 185(a) for this reason.

The power given by section 185 is discretionary and its exercise would produce the result that the opposite party would lose some advantage and perhaps an advantage critical in the outcome of the appeal. The provision is clearly intended to avoid hardships and to enable the Court to get to the real substance of a matter without the proceedings becoming frustrated by formalities and technicalities. Nevertheless, it must be remembered that the granting of an advantage to one party may have the effect of depriving the other party of something to which he is entitled by law.

This being a prosecution for an indictable offence, the public interest is a matter of major concern, but it appeared to me that I should not exercise the powers conferred by section 185 upon a preliminary objection without considering what effect an extension of time and a dispensation with the compliance with conditions, might have upon the public interest and upon the position of the respondent as a matter of substantial justice. I therefore reserved the application under section 185 until a later stage of the proceedings and intimated that I would proceed in the meantime with the questions of substance.

It is clear that the appellant has not attempted to satisfy the conditions set out in section 176 as to entering into a recognizance on appeal or giving other security. In some ways, the case is something of a test case. The appellant relied on the argument that the Crown has a general interest in all criminal proceedings and that an appeal being beyond the normal duty and responsibility of a Police Officer, the Crown, through the Crown Solicitor, is in reality a party to the appeal and, as a matter of construction, section 174 should not be taken as imposing an obligation on the Crown to give a recognizance.

Whilst I agree that the Crown has an interest in these proceedings and might in Her Majesty's name have given Notice of Appeal, if such had been desired, the fact is that this step was not taken. Elliott v. Taylor 1947 SRQ 210 was relied upon as an authority to establish the right of the Crown in proceedings of this kind. In Elliott v. Taylor the Crown did not elect to be named as a party to the appeal, but exercised its right to appoint another officer to take the place of the first one who had died. The officer authorised to carry on the proceedings, in fact, entered into recognizances, and it was for the purpose of complying with these conditions to the right to appeal that the procedure of appointing a substitute officer was adopted. This met with the approval of the Court. I would regard Elliott v. Taylor as an authority against, rather than for, the appellant in the present case. The result is that, unless I find some substantial reason for exercising my discretion in favour of the appellant, the present appeal must fail.

Coming to the events that occurred on 15th October, 1962, it appears that the Resident Magistrate had before him the police charge book and certain persons who were in police custody. The first charge related to the present respondent, who was charged with stealing one padlock valued at one shilling, the property of Burns Philp (N.G.) Limited. The charge was laid under section 398 of the Criminal Code and clearly comprises an indictable offence. The Magistrate began reading the charge and, when he saw the value of the property, he said in substance that he would not deal with the matter because it was too trivial. The wording in the Magistrate's reasons for decision did not agree precisely with the words set out in the Court record, but there is no great substance in the difference of wording. One witness said that the Magistrate added certain further words which might have had a bearing on the present appeal but, owing to some conflict between possible witnesses as to what was in fact said, Counsel for the appellant intimated that no reliance would be placed on any additional words which might have been uttered.

It is clear that the Magistrate had not called upon the defendant to plead or answer the charge, or called upon anybody to speak. It does not appear whether he was reading the charge to the defendant or reading it for his own information. It appears from the evidence of the appellant that the Magistrate refused to deal with the matter before he had finished reading the charge, and before he had any information or evidence before him which would enable him to form any proper opinion as to whether the charge were trivial or not. If the steps taken by the Magistrate are to be taken as an order or decision upon committal proceedings in relation to an indictable offence, then there can be no appeal from a dismissal of the complaint by virtue of the express terms of section 4 of the Justices ordinance 1912-1956.

By virtue of section 95 of the Justices Ordinance, the opinion that the evidence was not sufficient to put the defendant upon his trial could not at that stage have been reached by the Magistrate and for that reason he had no jurisdiction under section 95 to discharge the defendant. Since these proceedings are wholly statutory it is difficult to see what power the Magistrate would have to discharge a defendant without hearing evidence. At the very least, he would have to proceed with a hearing far enough for it to appear as a matter of law that in no event could the evidence be sufficient to put the defendant upon his trial. Short of reaching this point, I think it is clearly the duty of the Magistrate to hear the evidence for the Complainant before discharging the defendant.

Since the events did not satisfy the requirements of section 95 of the Justices ordinance, it was argued on the part of the appellant that the Magistrate must have purported to determine the case summarily, which he would have jurisdiction to do under sections 443 and 444 of the Criminal Code. If he were exercising his powers on a summary jurisdiction, or deciding a question arising under section 444, then so far as section 4 of the Justices Ordinance is concerned, his order would constitute a refusal to hear and determine the matter before him, and would be subject to appeal.

In my view, it is clear that the Magistrate was not in fact exercising any summary jurisdiction, for he has no power to deal with an indictable offence summarily, unless he acts in accordance with the requirements of the sections of the Code to which I have referred. If the Magistrate thinks it a fit case for summary hearing, section 444 requires him to explain to the defendant that he is entitled to be tried before the Central Court, and he must be asked whether he objects to a summary hearing. The procedure is then set out whereby the charge is reduced to writing and a plea is taken, and then, in certain events, the case must be heard summarily. These are preliminary steps in arriving at a decision as to the procedure to be followed, before turning to section 127 of the Justices Ordinance which marks the commencement of the summary hearing. (see R. v. Walters 1945 QSR 154).

It is clearly established that Justices cannot exercise this kind of jurisdiction unless they comply precisely with the conditions of its exercise. If they purport to do so, their decision is a nullity. As Lord Goddard C.J. said in Stefani v. John 1948 1 KH 158 at page 161-

"Summary jurisdiction of course is entirely a matter of statute. The Justices have only power to deal with cases summarily if they are given power by statute to do so and if some provision in the statute is not complied with it follows that the Justices have no jurisdiction to hear and determine."

When the Magistrate decides to convert the hearing of a complaint for an indictable offence into a summary Court hearing, the nature of the tribunal, the jurisdiction available and the procedure all undergo profound changes, and the statutory conditions to conversion from one tribunal to another must be fully complied with. Stefani v. John illustrates the strictness of this position.

The history of this kind of legislation is reviewed by Dixon C.J, and Fullager J. in their minority judgments in Hall v. Braybrook [1956] HCA 30; 95 CLR 620. In the same case, it was also held by a majority that, according to the legislation in force in Victoria, the refusal by justices to grant a summary hearing was a decision which was open to review.

I think the proper analysis of what took place in the present case is this: the defendant was under arrest and was brought before the Magistrate to be dealt with for an indictable offence. Unless and until a decision to conduct a summary hearing was validly made upon a proper compliance with the statutory conditions to the exercise of jurisdiction, the hearing before the Magistrate would be and would continue to be in the nature of committal proceedings upon an indictable offence. The Magistrate had not even commenced these proceedings and never reached the stage at which he could make any decision, either of a ministerial or judicial nature for the release of the defendant from custody, and therefore any order by which he purported to do so would be a nullity. I do not think that at any stage he pronounced any order or exercised any jurisdiction. I think that his refusal to act was a refusal to take any action at all, as soon as he became aware of the value of the property allegedly stolen. In these circumstances, there is no order for this Court to quash, and the record of the Court of Petty Sessions seems to contain nothing which needs to be altered. Therefore, it is open to the police, if they see fit, to bring the defendant back before the Court for the case to proceed. If there is a complaint already before the Court, and the record does not show this, I can see no reason why a Magistrate should not proceed with a hearing upon the same complaint.

Since no jurisdiction has been exercised, I think that the present appeal is unnecessary, and that there is no reason for extending time or dispensing with conditions.

Appeal dismissed.

NOTE: I do not express any opinion whether the alleged offence is trivial or not. I understand that the defendant denies the offence and intends to defend the case if it proceeds. An indictable offence is not per se trivial. One cannot say without looking at the merits, whether this present charge is trivial or not.